Devon County Council (23 007 134)

Category : Education > Alternative provision

Decision : Upheld

Decision date : 15 Feb 2024

The Ombudsman's final decision:

Summary: There was a failure to provide alternative education and special educational provision in an EHC Plan when a child was unfit to attend school. This caused significant injustice including loss of education and additional stress to the family over an extended period. The Council will apologise, take action to put education in place, offer an assessment of social care needs for a disabled child and parent carer, and make symbolic payments to acknowledge the injustice caused.

The complaint

  1. Ms X complains the Council:
    • Failed to provide alternative education under s.19 Education Act 1996
    • Failed to secure special educational provision in an Education, Health and Care (EHC) Plan in breach of s.42 Children and Families Act 2014
    • Discriminated against her child under the Equality Act 2010.
  2. Ms X says as a result of the alleged fault:
    • Her child has not attended school since March 2022.
    • Her child was not provided with suitable fulltime education.
    • Her child’s absence from school has impacted her ability to work and placed extra caring responsibilities on her.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
    • We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
    • The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
    • We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended).
  3. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
  4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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What I have and have not investigated

  1. I have investigated the period from April 2022 to February 2024. While this is more than twelve months before Ms X raised her formal complaint, I am satisfied the Council was aware problems with Ms X’s child’s attendance from October 2021, that Early Help was involved from this time, and that the Inclusion Officer was involved in meetings from April 2022. The Council has confirmed to me it was fully aware of the situation from April 2022 and an EHC needs assessment was then underway.
  2. I have not investigated the period between October 2021 and April 2022. Attendance increased and then reduced during the Autumn term before stopping in February. It would not have been immediately clear that alternative education may be required given the sporadic pattern of attendance in Autumn 2021. Ms X also did not raise a complaint about that period at the time.
  3. I have investigated the period up to February 2024. While Ms X’s child moved schools in September 2023, they never managed to attend this school regularly and this period is therefore a continuation of the same difficulties that had existed from 2021 onwards, of which the Council was fully aware.

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How I considered this complaint

  1. I have considered information provided by Ms X and the Council including:
    • Chronology of events prepared by the Council
    • EHC Plan documents
    • Child in Need documents
    • Complaint documents and correspondence.
  2. I have considered relevant law and statutory guidance including:   
    • The Children Act 1989
    • The Children and Families Act 2014

•     The Special Education and Disability Regulations 2014 (‘The Regulations’)

•     The Special Educational Needs and disability code of practice: 0 to 25 years (‘The Code’)

    • The Equality Act 2010
    • Statutory Guidance ‘Alternative Provision’
    • Statutory Guidance ‘Mental health issues affecting a pupil’s attendance – guidance for schools’
    • Statutory Guidance ‘Working together to improve school attendance’
    • Statutory Guidance ‘Education for children with health needs who cannot attend school’
    • Statutory Guidance “Working together to safeguard children’.
  1. I have considered the Ombudsman’s Guidance on Remedies.
  2. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
  3. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Special educational needs

  1. A child with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
  2. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of a final EHC Plan.
  3. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than twenty weeks.
  4. The Council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan of (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135) 

Alternative education

  1. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless that is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
  2. ‘Suitable education’ means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
  3. The Courts have found that it is a judgement for the council whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. Councils are not bound to follow medical advice unless it would be irrational not to do so. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
  4. Statutory guidance says there will be a wide range of circumstances where a child will receive a suitable education without the intervention of the Council; for example, where the child can still attend school with some support or where the school has made arrangements to deliver education outside of school. The guidance says ‘we would not expect the local authority to become involved…unless it has reason to think that the education being provided…was not suitable, or while otherwise suitable, was not full-time or the number of hours the child could benefit from without adversely affecting their health. This might be the case where…the child can attend school but only intermittently’.
  5. Statutory guidance says that in very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution and must not be used to manage a child’s behaviour.
  1. Statutory Guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ says councils should work closely with medical professionals and the child’s family. Where specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should consider liaising with other medical professionals or look at other evidence to ensure ‘minimal delay in arranging appropriate provision for the child’.
  1. In new guidance ‘Summary of responsibilities where a mental health issue is affecting attendance’ and ‘Working together to improve school attendance’ the Government says professionals should provide cross-agency support through a team around the family to alleviate a pupil’s concerns about barriers to attending school. Schools must record absences as authorised where pupils cannot attend due to illness that is mental health related. Schools should inform the Council where pupils are likely to miss more than fifteen days. Councils ‘must not follow an inflexible policy of requiring medical evidence before making their decision about alternative education. Councils must look at the evidence for each individual case, even where there is no medical evidence, and make their own decision about alternative education’.
  2. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022. We say Councils should:
    • consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
    • consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
    • consider (based on all the evidence) whether to require attendance at school or whether to provide the child with suitable alternative provision;
    • keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
    • work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary;
    • put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
  3. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, they should retain oversight and control to ensure duties are properly fulfilled.

Equality Act

  1. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
  2. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
  3. The ‘protected characteristics’ referred to in the Act are:
  • age;
  • disability;
  • gender reassignment;
  • marriage and civil partnership;
  • pregnancy and maternity;
  • race;
  • religion or belief;
  • sex; and
  • sexual orientation.
  1. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether an organisation has properly taken account of an individual’s rights in its treatment of them.

Chronology of events

  1. The following is a summary of key events. It does not include everything that happened.
  2. Ms X’s child returned to school in Autumn 2021 following a period of home education, which in turn followed problems with school attendance that dated back before 2020.
  3. An Early Help assessment carried out by Council staff in late 2021 recorded that Ms X’s child has started school two days a week but after October half term this had increased to full-time, although there were some ‘bad days’. The goal was for full attendance and an action for Ms X to request an EHC needs assessment as her child was awaiting various investigations into their special educational needs.
  4. The EHC needs assessment request was accepted by the Council. The Council’s decision whether to issue a plan was due by May 2022, with any final plan due in June 2022.
  5. In April 2022 the School wrote to the Council stating Ms X’s child, who was awaiting an EHC Plan, was not attending school and had not done so since February 2022. The School said it had authorised absence based on medical advice from the General Practitioner (GP). Early Help records confirm nil attendance from February.
  6. In June 2022 the School queried whether more medical advice was required as at a recent meeting the Council had informed the School that GP letters ‘weren’t deemed to be acceptable’. The School asked the Council whether it now needed to take action to secure attendance. I have not seen what reply the Council provided, if any.
  7. Social care provided advice for the EHC needs assessment in June 2022 stating there were no social care needs identified, although the case remained open to Early Help. This advice appears to have been based on assessments in previous years which would not have reflected the current situation of a child out of school with health needs.
  8. A Team around the Family (TAF) meeting was held with a Council Inclusion officer present. Ms X was funding private play therapy which was proving successful, and doing some formal academic work at home. Ms X did not consider her child would tolerate even fifteen minutes in school but may visit a teacher after the end of the school day. Ms X was exploring specialist provision as part of the EHC needs assessment. It was noted an Educational Psychologist had not yet been allocated to do the EHC needs assessment. As the EHC Plan was due, a further meeting was agreed in late July to plan for September.
  9. Attendance data shows Ms X’s child did attempt to attend some sessions in September 2022, but this was for a brief period only.
  10. The final EHC plan was not issued until November. It named the current school. Ms X did not appeal this decision.
  11. Ms X’s child attendance was 34% in 2021/22, of which the majority of absences were authorised. Non-attendance continued in the 2022/23 academic year. Recorded attendance was 17%, again with the majority of absence authorised by the school on medical grounds.
  12. No action was taken for non-attendance.
  13. In January 2023, Ms X raised concerns about delay and poor communication about school consultations for secondary school. Ms X said she was considering making a formal complaint.
  14. The final EHC Plan was amended in February 2023 to name a secondary placement from September 2023. Ms X did not appeal this decision.
  15. Regular TAF meetings involving Council Inclusion officers continued.
  16. In Spring 2023:
    • Ms X applied to social care for a child in need assessment by the Disabled Childrens Team. Social care advised they did not meet the criteria for this team.
    • The School made a referral for alternative education to be provided under s.19 Education Act 1996 and for an education key worker. The referral was supported by a mental health practitioner. The Council refused and told the School to use EHC Plan funding to provide some mentoring. The Council said there was a twelve-week waiting list for key worker support so this would not be in place before Ms X’s child moved to secondary school.
  17. A further TAF meeting was held in May 2023. This noted:
    • There was no medical evidence to support non-attendance;
    • Family had been declined s.19 education and an education key worker but not informed of these decisions;
    • No alternative education for eighteen months;
    • Changing schools in September but concerns whether will attend;
    • EHC Plan funding can be used to fund a transition mentor.
  18. Ms X made a formal complaint in Summer 2023. The Council responded to this promptly, but it did not uphold the complaint. It said:
    • Since October 2022 the School had received additional EHC Plan funding which the Council would have expected it to use to adapt the curriculum for Ms X’s child.
    • A special school place had been allocated for September 2023 and the Council was confident this would allow for a successful transition. If the new school had concerns about attendance an EHC Plan review could be held.
    • The Council said the s.19 request had been refused because:
      1. The School was coding the absences as unauthorized and if a placement change was needed this should be done via an interim review.
      2. A key worker was declined as Ms X’s child did not want to attend their school.
      3. Ms X would need to bring any claim for ‘compensation’ in a ‘legal arena’.
  19. In response to my enquiries, the Council told me that referral to a s.19 panel at the time required a referral from school but also from a paediatrician or Child and Adolescent Mental Health Services (CAMHS). The GP advice outlined long term needs that would make accessing education hard ‘at times’ but did not specify it would prevent accessing education provision completely.
  20. In Autumn 2023 Ms X informed the Council transition to the new school had not been successful and her child was not attending. Attendance data again shows a few attendances at the start of term before it again stops. Ms X was advised to request an emergency review of the EHC Plan. Ms X formally requested s.19 education. Ms X asked the Council to consider whether her child was going to be able to receive education in a school or if Education Otherwise than at School should be considered as their ‘placement’.
  21. A review meeting was held in December 2023. Attendance data to Christmas shows attendance was 9% with most non-attendance authorised.


EHC Plan

  1. There was delay in issuing the first EHC Plan. The twenty-week timescale is the maximum allowed, but Councils should complete steps as soon as practicable. Where a child is out of school there would be an expectation delays would be minimised. The Council should have issued the final Plan in June 2022 and did not issue it until November. This was fault and meant funding and provision was delayed.

S.19 Education

  1. The Council was aware of problems with attendance from October 2021. In April 2022 formal TAF meetings started to be held because Ms X’s child had not attended school at all since February. The School alerted the Council that it had authorised absence on medical grounds since February and an Inclusion Officer was involved.
  2. There is no specific point in law when the Council becomes responsible for a child with health needs, but statutory guidance says councils should provide education once it is clear the child will be away for fifteen days or more, whether consecutive or cumulative. Councils should liaise with the appropriate medical professionals to ensure minimal delay in arranging provision for the child.
  3. I am satisfied the Council had sufficient knowledge of Ms X’s child’s needs in April 2022 to have put in place s.19 education. The School did not have EHC Plan funds in place at that time and was not providing suitable alternative education. The legal duty to provide s.19 education rests with the Council. It may expect a school to make provision, but where a school fails to do so, the Council must intervene.
  4. This is not a case where the Council failed to make appropriate referrals. There was involvement from Early Help, Inclusion, SEN and social care and regular TAF meetings. None of this however led to any action being taken to provide s.19 education or other support to the family. The responsibility was repeatedly placed back on to the School, or decisions put on hold pending the outcome of the EHC needs assessment, and then later until secondary transfer had occurred. This was fault.
  5. A formal request for s.19 education was made in Spring 2023. Various reasons have been given by the Council for refusal including that there was no supporting medical evidence, absence was unauthorised and that the School should be making adaptations within school using EHC Plan funds.
  6. There is little evidence to support the Council’s thinking at the time, or whether this reasoning was provided only afterwards in response to complaints and Ombudsman enquiries. In any event, this rationale did not fit the facts. Most absences were authorised. There was medical evidence from CAMHS supporting alternative education provided in March 2023, so it was incorrect to say only GP evidence was available. However, even if the only evidence was from a GP, this still required the Council to make a judgment whether the child was fit to attend school or whether s.19 education was required. There is no evidence the Council made a considered judgment on this matter. The School had provided evidence of what it had tried, and that all attempts at reintegration had failed. The Council knew the child had not attended since February 2022, so adaptations to the curriculum were unlikely to resolve a problem of a child who had been absent for many months already.
  7. I find the Council should have considered s.19 education no later than April 2022, and provision should have been made given there was supporting evidence from school, medical professionals and Early Help that Ms X’s child could not attend on health grounds.
  8. I acknowledge some mentoring was in place over Summer 2023 to support transition, but this was not successful. The Council should have monitored the situation from Autumn 2023 to check if Ms X’s child did manage to attend the new school and, if not, have been ready to step in to provide s.19 education.

Poor communication and complaint handling

  1. There is evidence Ms X was not kept informed of decisions. This is fault.
  2. There was fault in the complaint handling as Councils can provide financial remedies via the complaint process without legal action needing to be taken. The Ombudsman publishes Guidance on Remedies which councils can use to resolve complaints upstream without the need for complainants to bring their complaint to the Ombudsman. The Council was wrong to imply no financial remedy could be obtained through the complaint process.

Equality Act

  1. Ms X’s child has special educational needs and would be considered a disabled child. The Council’s equality duties were therefore engaged. I have not seen evidence the Council took these duties into account in its handling of this case.


  1. Ms X had to provide additional care to her child who was out of school. I acknowledge Ms X was also unable to work, but that may have been the situation even if s.19 education was provided if her child could not manage to attend school or an alternative provider.
  2. Ms X told me her mental health has been affected and the situation has caused significant stress over an extended period.
  3. Ms X’s child missed out on education. They attended some sessions in September 2022 and again in September 2023 but for the remainder of the time were unable to attend. Since Autumn 2022 they have also missed out on the special educational provision in their EHC Plan. This has caused significant injustice, which is continuing.
  4. Ms X told me she has paid for private tuition and workbooks to prevent her child falling further behind in maths and English.

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Agreed action

Within four weeks of my final decision

  1. The Council will apologise to Ms X and her child for the fault identified in this decision statement.
  2. The Council will pay Ms X £1500 for her distress, time and trouble and the impact on her of providing additional care while her child has been at home without tuition. This level of payment reflects the Council should have intervened to provide alternative education twenty-two months ago.
  3. The Council will pay Ms X, on behalf of her child, £12,400 calculated at:
    • £2400 for Summer term 2022.
    • £2000 for Autumn term 2022, when they initially attended some sessions, then stopped.
    • £2400 for Spring 2023 term.
    • £2400 for Summer 2023 term.
    • £2000 for Autumn 2023 term when transition was attempted but quickly failed.
    • £1200 for first half of Spring 2024 term.

Ms X may recoup from the payment made on behalf of her child the tuition or other expenses she has incurred.

  1. The Council will now put in place s.19 education without further delay and ensure the provision is regularly reviewed.
  2. I am pleased to learn the Council has held a recent emergency review of the EHC Plan, which Ms X says was in response to her request as the annual review was overdue. A decision should have been communicated to Ms X regarding the outcome of the meeting. This decision will provide Ms X with appeal rights which we would expect her to use if it is her view that the provision in the EHC Plan is insufficient. For example, If Ms X’s position is now that no school should be named and the Plan should be changed to Education Otherwise than at School, we would expect Ms X to use her right of appeal to the Tribunal as only the Council or Tribunal can change the content of the EHC Plan or the placement.
  3. The Council should discuss with Ms X whether she is seeking and consenting to a social care assessment under s.17 Children Act 1989. As part of this assessment the Council should offer a Parent Carer Needs Assessment under s.17ZD.
  4. The Ombudsman has made recommendations to the Council for service improvements within the last twelve months in similar investigations. These include training on the alternative provision duty and new guidance for staff. The Council is also in the process of reviewing its s.19 pathway and this review is due to be completed in early 2024. Therefore, I do not consider it necessary to make further service improvement recommendations.

Within two months of my final decision:

  1. The Council will issue advice / guidance to complaint officers about the ability to provide financial remedies and signpost officers to our Remedies guidance.
  2. The Council will provide us with evidence it has complied with the above actions.

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Final decision

  1. I have completed my investigation. There was a failure to provide alternative education and special educational provision in an EHC Plan when a child was unfit to attend school. This caused significant injustice including loss of education and additional stress to the family over an extended period. I am satisfied the agreed actions set out above are a suitable remedy to the complaint. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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